BABATUNDE v. STATE (2020)

BABATUNDE v. STATE

(2020)LCN/14343(CA)

In The Court Of Appeal

(ADO-EKITI JUDICIAL DIVISION)

On Tuesday, June 09, 2020

CA/EK/44C/2019

Before Our Lordships:

Theresa Ngolika Orji-Abadua Justice of the Court of Appeal

Fatima Omoro Akinbami Justice of the Court of Appeal

Paul Obi Elechi Justice of the Court of Appeal

Between

RAJI BABATUNDE APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WAYS THE PROSECUTION MAY PROVE THE GUILT OF AN ACCUSED PERSON

It is settled in our law that in a criminal trial, the Prosecution may prove the guilt of the defendant either by direct eye witness account, or by circumstantial evidence from which the guilt of a defendant can be inferred, or by a free and voluntary confessional statement of guilt, which is direct and positive or by a combination of any of the three modes – Emeka v. State (2001) 14 NWLR (Pt. 734) 666, Nigerian Navy v. Lambert (2007) 18 NWLR (Pt. 1066) 300, Ilodigwe v. State (2012) 18 NWLR (Pt. 1331) 1, Umar v. State (2014) 13 NWLR (Pt. 1425) 497. PER AKINBAMI, J.C.A.

WHETHER OR NOT WHERE AN ADVERSE PARTY FAILS TO CROSS-EXAMINE A WITNESS UPON A PARTICULAR MATTER, THE IMPLICATION IS THAT HE ACCEPTS THE TRUTH OF THE MATTER AS LED IN EVIDENCE

The law is that, in such circumstances, the testimony of the witness on the making of the statement by the Appellant, will be believed and any subsequent suggestion otherwise by the accused defendant is to be treated as an afterthought – Iwunze v. Federal Republic of Nigeria (2013) 1 NWLR (Pt. 1334) 119, Chukwu v State (2013) 4 NWLR (Pt. 1343) 1, Egwumi v. State (2013) All FWLR (Pt. 678) 824. This point was succinctly explained by Achike, JSC in Oforlete v. State (2000) 12 NWLR (Pt. 631) 475 at 436 C-E thus:
“where an adversary fails to cross-examine a witness upon a particular matter, the implication is that he accepts the truth of the matter as led in evidence. After all, the noble art of cross-examination constitutes a lethal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party. It is therefore good practice for counsel not only to put across his client’s case through cross-examination, he should, as a matter of the utmost necessity, use the same opportunity to negate the credit of that witness whose evidence is under fire. Plainly, it is unsatisfactory, if not suicidal bad practice, for counsel to neglect to cross-examine a witness after evidence-in-chief in order to contradict him or impeach his credit while being cross-examined but attempt at doing so only by calling other witness or witnesses thereafter. That is demonstrably wrong and will not even feebly dent that unchallenged evidence by counsel leading evidence through other witnesses to controvert the unchallenged evidence.” PER AKINBAMI, J.C.A.

WHETHER OR NOT WHERE AN ACCUSED DEFENDANT DOES NOT CHALLENGE THE MAKING OF HIS CONFESSIONAL STATEMENT BUT MERELY GIVES ORAL EVIDENCE WHICH IS INCONSISTENT WITH THE CONTENTS OF THE STATEMENT, THE ORAL EVIDENCE SHOULD BE TREATED AS UNRELIABLE

The law is that where an accused defendant does not challenge the making of his confessional statement but merely gives oral evidence which is inconsistent with or contradicts the contents of the statement, the oral evidence should be treated as unreliable and liable to be rejected and the contents of the confessional statement upheld unless a satisfactory explanation of the inconsistency is proffered – Gabriel v. State (1989) 5 NWLR (Pt. 122) 457, Ogoala v. State (1991) 2 NWLR (Pt. 175) 509, Egboghonome v. State (1993) 7 NWLR (Pt. 306) 383, Oladotun v. State (2010) 15 NWLR (Pt. 1217) 490, Federal Republic of Nigeria v. Iweka (2013) 3 NWLR (Pt. 1341) 285, Osuagwu v. State supra. In the instant case, the Appellant did not offer any explanation for the inconsistency. PER AKINBAMI, J.C.A.

TEST TO DETERMINE THE VERACITY OF A CONFESSIONAL STATEMENT

Going further, and assuming that the Appellant presented a situation that necessitated the need for corroborating facts of his confessional statement, what is required is that before the Court would believe and act on the confession, it should subject the confessional statement to the following tests:
i. whether there is anything outside the confession which shows that it may be true;
ii. whether it is corroborated in any way;
iii. whether the relevant statements of facts made in it are mostly true as far as they can be tested;
iv. whether the defendant had the opportunity of committing the offence;
v. whether the confession is possible; and
vi. whether the alleged confession is consistent with other facts that have been ascertained and established.
See the cases of Osuagwu v. State (2009) 1 NWLR (Pt. 1723) 523, Kabiru v. Attorney General, Ogun State (2009) 5 NWLR (Pt. 1134) 209, Nwokearu v. State (2010) 15 NWLR (Pt. 1215) 1 and Galadima v. State (2012) 18 NWLR (Pt. 1333) 610. PER AKINBAMI, J.C.A.

THE DEFENCE OF THE PLEA OF ALIBI

Further, it is settled law, that where the prosecution leads strong and positive evidence which fixes the accused person at the scene of the crime and which evidence the Court accepts, any plea of alibi raised by the accused person naturally collapses – Olaiya v. State (2010) 3 NWLR (Pt. 1781) 423, Afolalu v. State (2010) 16 NWLR (Pt. 1220) 584 and Sunday v. State (2010) 18 NWLR (Pt. 1224) 223. In the instant case, the clear, cogent and explicit contents of the confessional statement of the Appellant, Exhibits A and D, clearly negate the plea of alibi raised by the Appellant. The plea was unavailing of the Appellant, and the rejection of the defence of alibi by the lower Court cannot thus be faulted. PER AKINBAMI, J.C.A.

FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading judgment): This appeal challenges the decision of the Ekiti State High Court, delivered on the 29th day of March, 2018, in which the Appellant was convicted and sentenced to death by hanging for Armed Robbery.

The Appellant and his co accused were charged before the High Court of Ekiti State on a three count charge:-
COUNT I. STATEMENT OF OFFENCE
ARMED ROBBERY, contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Vol.14, Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
RAJI BABATUNDE and ADEGBOYE SUNDAY, together with others at large, on or about the 30th day of July, 2014, at No 15, Odundun Street, Okesa Area, Ado-Ekiti, in Ado Judicial Division robbed one Alhaji Mudashiru Bello of two Nokia phones, and one Techno phone, and at the time of the robbery, you were armed with offensive weapons to wit: axe and cutlass.
COUNT II. STATEMENT OF OFFENCE
ARMED ROBBERY, contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Vol 14, Laws of the Federation of Nigeria, 2004.

PARTICULARS OF OFFENCE
RAJI BABATUNDE and ADEGBOYE SUNDAY, together with others at large, on or about the 30th day of July, 2014 at No 5C, Dallimore Street, Ado-Ekiti in Ado- Ekiti Judicial Division robbed one Oladele Femi of one bottle of Star Lager beer, six bottles of Trophy and one packet of Rothman’s cigarette, and at the time of the robbery, you were armed with offensive weapons to wit: axe and cutlass.
COUNT III. STATEMENT OF OFFENCE
ARMED ROBBERY, Contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Vol 14 , Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
RAJI BABATUNDE and ADEGBOYE SUNDAY, together with others at large, on or about the 30th day of July, 2014, at Okesha Area, Ado- Ekiti, in Ado – Judicial Division, robbed one Bello Akeem of his Techno handset, and the cash sum of Ten Thousand Naira(N10,000.00), and at the time of the Robbery you were armed with offensive weapons to wit: cutlasses, knives, broken bottles and axe.

At the trial Court, the charges were read to the Appellant, he pleaded not guilty to the three count charge. Upon his plea of not guilty, the matter

was set down for hearing. The Prosecution called six (6) witnesses in proof of its case, while the Appellant testified for himself and called one witness in defence.

The learned trial judge, after the adoption of written addresses by counsel, reviewed and evaluated the evidence led, and found the offence of armed robbery levied against the Appellant proved beyond reasonable doubt, and consequently convicted and sentenced the Appellant accordingly.

THE FACTS OF THE CASE
The Respondents’ case before the trial Court, was that on the 30th day of July , 2014 at about 2.am, a gang of armed robbers numbering about four (4) including the Appellant invaded Odundun Street, Okesa Area of Ado-Ekiti, and broke into the house of Alhaji Mudashiru Bello, and one Bello Akeem, robbed and violently dispossessed them of their belongings, such as two Nokia Phones, one Techno Phone, and the sum of Ten Thousand Naira (N10,000.00).

However, nemesis caught up with the Appellant as a distress call sent to the Police was quickly responded to. The Police on arrival at the scene of robbery, engaged the Appellant and his fellow robbers in a gun duel, and the

appellant was shot, overpowered and arrested at the scene of robbery. The other three armed robbers escaped from the scene. In the course of investigations, the second accused person Sunday Adegboye was arrested through the assistance of the Appellant. The other two armed robbers are still at large, and yet to be apprehended.

The Appellant, and Sunday Adegboye were arraigned for armed robbery contrary to Section 1(2)(a), of the Robbery and Firearms (Special Provisions) Act Cap R11, Laws of the Federation of Nigeria, 2004.

In all, the Respondent called six (6) witnesses and tendered exhibits A, B, C, D, E, F, G, H, I, J-J3, K, L, M, N.
The Evidence of the Prosecution witnesses, and the exhibits tendered are at pages 31-60 of the record of appeal. At the close of the Prosecution’s case, the Appellant and Sunday Adegboye testified in their defence and called one other witness.

The learned trial judge, after the adoption of written addresses by counsel, reviewed and evaluated the evidence led, and found the offence of armed robbery levied against the Appellant, proved beyond reasonable doubt, and consequently convicted and sentenced the

Appellant accordingly to death. Sunday Adegboye was discharged and acquitted.

The Appellant, not unexpectedly filed this appeal against the said conviction. The Original Notice of Appeal, contained on page 159 of the Record of Appeal, was dated the 4th day of May, 2018 which contained One (1) Ground of Appeal. The Appellant by Order of Court, filed his Amended Notice of Appeal which had eight (8) additional Grounds of Appeal.

The said Notice of Appeal is comprised of nine (9) Grounds of Appeal. For ease of reference, I reproduce them (but without their particulars) below:-
GROUND 1
The learned trial judge erred in law, and in fact in convicting the Appellant of the offence of armed robbery, and sentenced him to death by hanging when the Prosecution failed to prove the offence of armed robbery against the Appellant beyond reasonable doubt as required by law.
GROUND TWO
The learned trial judge erred in law when he relied on inadmissible, uncorroborated and hearsay evidence, and mere suspicion in reaching the conclusion that the Appellant was guilty of armed robbery and thereby occasioned a grave miscarriage of justice.

GROUND THREE
The learned trial judge erred in law when he convicted the appellant of the offence of armed robbery despite the fact that the Prosecution did not tender the alleged weapon that was used in the purported robbery to prove the allegation of armed robbery was thereby occasioned a grave miscarriage of justice.
GROUND FOUR
The learned trial judge erred in law when he wrongly evaluated the evidence adduced at the trial and thereby arrived at the perverse decision that the Appellant was guilty of armed robbery.
GROUND FIVE
The learned trial judge erred in law when he placed unequivocal and total reliance on Exhibits A and D, the alleged extra-judicial statements of the Appellant on which the conviction and sentencing of the Appellant was based.
GROUND SIX
The learned trial judge erred in law, and in fact in convicting the Appellant of the offence of armed robbery, and sentenced him to death by hanging when the Prosecution failed to prove the offence of armed robbery against the Appellant beyond reasonable doubt as required by law.
GROUND SEVEN
The trial Court erred in law when it relied on Exhibits A and D in

convicting the Appellant despite the clear lapses and the circumstances surrounding the making and tendering of the said Exhibits.
GROUND EIGHT
The trial Court erred in law when it held, convicted and sentenced Appellant for the offence of armed robbery, and thereby sentenced and imposed the maximum penalty of death sentence, when in fact the Appellant was below seventeen years old at the time the alleged offence was committed.
GROUND NINE
The judgment of the lower Court is against the weight of evidence.

Counsel for the Appellant distilled four issues from the nine grounds of appeal for determination :-
A. Whether the prosecution proved its case of armed robbery against the Appellant beyond reasonable doubt having regard to the evidence adduced at the trial Court.” (Grounds 1, 2, 4, and 6).
B. Whether the failure of the prosecution to produce and tender the weapon allegedly used in the purported robbery in the proof of its case against the Appellant is not fatal to its case. (Ground 3)
C. Whether the trial Court was right when it relied heavily on Exhibits A and D which were the retracted confessional

Statements of the Appellant in convicting him. (Grounds 5 and 7).
D. Whether the trial Court was right when it imposed a maximum sentence of death penalty on the Appellant who was a juvenile at the time the alleged offence was committed.(Ground 8).

Respondent’s counsel also adopted Appellants’ four issues for the determination of this appeal.

Before l determine the issues distilled by counsel in this appeal, l must note that Grounds 1 and 6 are the same, while grounds 5 and 7 above also are the same. The complaint of the Appellant in grounds 5 and 7 is on Exhibits A, and D, which are confessional statements of the Appellant. Whilst the grouse of the Appellant in grounds 1 and 6 is that the prosecution did not prove the offence of armed robbery beyond reasonable doubt. I am of the view that the main complaint of the appellant in this appeal is whether the Prosecution proved its case of armed robbery against the appellant according to law, beyond reasonable doubt. The Appellant’s issue (a) encapsulates his issues b, c, and d. I would therefore determine this appeal on Appellant’s issue (a).

Issue A
“Whether the Prosecution proved its case of armed robbery against the Appellant beyond reasonable doubt having regard to the evidence adduced at the trial Court”.
In arguing issue (a), Appellant’s counsel stated the principle of law, that the prosecution has the burden of proving that a person is guilty of a crime. And that is what is applicable in Appellant’s case. He cited the provisions of Sections 135 (2) , 139(3), 140(1) and (2) of the Evidence Act, 2011. Counsel stated that the sections of the law are to the effect that an act will not be punished unless it is accompanied by a blameworthy mind. By this the burden of proving the “actus reus” and the “mens rea” of an offence are on the prosecution at all times in a criminal trial. He cited the case of Udosen v State (2007) 4 NWLR (Part 1023) 125 at 150 paras C-E. In his further submissions, counsel cited Section 121(a) of the Evidence Act, 2011 which states that a fact is said to be proved, when after considering the matters before it , the Court either believes it exists or considers its existence so probable that a prudent man ought, in the circumstance of

the case, to act upon the supposition that it does exist. He cited the cases of Mufutau Bakare v State (1987) 1 NWLR (PART52) 579 and Philip Omogodo v State (1981) 5SC 5 at 21.

It was submitted by counsel that the prosecution is bound under Section 139 of the Evidence Act, to establish the guilt of the Appellant beyond reasonable doubt. A trial Court therefore, before whom the issue of the guilt of the accused is in contention has a duty to make a finding as to whether from the totality of evidence before the Court, the defendant’s guilt has been proved.

Counsel elucidated his point, that the statutory burden of proof beyond reasonable doubt, to be achieved, the prosecution must elicit direct evidence, or circumstantial or both in establishing the guilt of the accused person beyond reasonable doubt, as required by Section 135 of the Evidence Act, 2011. He cited the case of Emeka v State (2001) 14 NWLR (PT 734) 666 at 683. Counsel further submitted that the Prosecution to prove the allegation of armed robbery, all the three ingredients of robbery as stated in the case of Adeyemi v State (2017) LPELR-42584 (SC) must be present. He cited the case

of Tanko v The State (2008) 16 NWLR (PT 1114) 639.

Counsel invited this Court to determine whether the evidence before the trial Court established all the vital elements of the offence of armed robbery charged against the Appellant.

The first sub-head examined by counsel is whether there was a robbery. On this, he referred to the evidence placed before the Court by the Respondent, that a robbery took place, and that the Appellant was the culprit. Appellant’s counsel is of the view that the Respondent failed to prove same with any evidence at the trial Court. He referred to the prosecution’s evidence as can be gleaned from pages 31-60, of the record of appeal, which is that the Appellant committed robbery by robbing one Alhaji Mudashiru Bello of his two phones, one Nokia whilst the other is Techno phone. And in an attempt to prove robbery against the Appellant , the Prosecution tendered Exhibits E, F, G, H, I, J-J3, K, L, and M .

Counsel contended that the onus on the Prosecution was not discharged, having failed to tender the item that was stolen or robbed by the Appellant. That the PW1, the complaint failed to tender or identify the

items that were alleged to have been stolen. On Exhibits A, and D, counsel submitted that, the Prosecution did not go further than tendering Exhibit A, which stated a version of what transpired on the fateful night, whilst Exhibit D, stated a different version which is radically different, and as a result there are contradictions. He cited the case ofInsp John Onwe v The State (2017) 6 SC (PT V) 135. Counsel urged the Court, that the contradictions in exhibits A, and D, ought to have been resolved in favour of the Appellant. In that DW1 and DW2, testified in defence during trial that no robbery took place.

It was further submitted by counsel that there was no incidence of robbery, let alone armed robbery to warrant the trial Court to convict the Appellant. Counsel referred to the evidence of the Appellant as DW2, on pages 63, and 64, of the record of appeal. That the allegation against the Appellant at the trial Court was that the Appellant was armed with a cutlass. The appellant denied being around the vicinity of the alleged robbery, as well as not knowing anything about the weapons found in the house of, PW1.

On the ingredient that the accused

person took part in the robbery, counsel cited the case of lsibor v The State (2001) FWLR (pt78) 1077 at 1100 CA; Bozin v The State (1985)2 NWLR (PT8) 465. Counsel contended that the trial Court was wrong to have believed the evidence of PW1, and PW2, in convicting the Appellant. That the lower Court was in error when it rejected the version of the incident that transpired as recounted by the Appellant. But rather, the Prosecution failed to investigate the offence against the Appellant, and hurriedly filed the information against him without verifying the truth. Secondly, the trial Court, in convicting the Appellant relied heavily on the confessional statements, of the Appellant which are Exhibits A, and D. These two exhibits, were attacked by counsel as having not being corroborated, and therefore there was nothing before the trial Court to show that it was true. He cited the case of F.R.N V BARMINAS (2017) 15 NWLR (PT 1588) 177 at 217.

In his further submissions, Counsel referred to the trial, that Exhibit C, which was the statement of the PW1, the trial Court relied on it, despite being hearsay which is inadmissible in law. He submitted that there

was no direct evidence of any eyewitness before the trial Court, to corroborate the alleged confession of the appellant. Counsel contended that the trial Court arrived therefore at a perverse decision. Where the finding of the trial Court has been found to be perverse, it is the duty of the Court to re-evaluate and re-assess same. He cited the case of Osuji v Ekeocha (2009) 16 NWLR (pt 1166) 81 at 117 paras C-G.

It was reiterated by counsel that, in the absence of any corroboration, the trial Court was wrong to have placed heavy reliance on the confessional statement, upon which he was convicted and sentenced to death.

He therefore urged this Court to hold that the prosecution in this case has not proved cogent, reliable and adequate evidence before the Court, to warrant a conviction of the Appellant on the charge of armed robbery.
Finally counsel urged this Court to resolve this issue in favour of the Appellant.

On this issue, the Attorney-General, Respondent’s counsel referred to Appellant’s submissions that the Respondent failed to prove all the ingredients of armed robbery as required by law. He conceded that the law, and

the standard in all criminal trials is that the burden, or the onus of proving the guilt of any accused person beyond reasonable doubt rests solely on the prosecution. He however contended that proof beyond reasonable doubt is not proof beyond all iota of doubt. He cited the cases of Bakare v State (1987) 1 NWLR (PT579) 460 paras D-F; Emeka v. The State (2001) Vol SMJ S.C 1 at 4 para1; Nasiru V The State (1992) 2 NWLR (PT 589) 87; Akalezi v The State (1993) 2 NWLR (PT273) 1 at 13.

The A. G noted the fact that Section 135 (1), and (2) of the Evidence Act, 2011, placed burden on the Prosecution to prove the guilt of an accused beyond reasonable doubt, by establishing all ingredients of the alleged offense pressed against the Appellant, and that the onus does not shift. He cited the case of Ikemson v State (1998) Vol 1 ACLR, page 80 at 83 ratio 45.

The three ingredients that must be contemporaneously present to prove armed robbery were enumerated by learned counsel as follows:
1. That there was a robbery
2. That the robbery was an armed robbery
3. That the accused person took part in the robbery.

Counsel cited the case of Attah v State (2010) ALL FWLR (PT 540) 1224 at 1256; Sowemimo v State (2011) ALL FWLR (PT599) 1064 at 1086.

In his further submissions, the Attorney-General enumerated the three ways of proving the guilt of an accused person as follows:-
1. By a voluntary confessional statement of the accused person.
2. By circumstantial evidence which must be cogent, unequivocal and compelling leading to the irresistible conclusion that the accused and no other person committed the offence but him.
3. By evidence of eye-witness or witnesses otherwise known as direct evidence. He cited the cases of Michael Taiye v State (2018) ALL FWLR (PT969) page 737 at pages 757-758, paras G-B; Adamu v State (2018) ALL FWLR (PT925) page 48 at page 79 paras D-E; Omoregie v State (2018) ALL FWLR (PT 925) 1 at 17 para D; Famuyiwa v State (2018) ALL FWLR (PT919) 1 at 24 paras F- G.

It was stressed by counsel that where all the essential ingredients of the offence charged as highlighted above, have been proved or established by the prosecution beyond reasonable doubt, the prosecution in such instance would have discharged the burden or onus on it. Therefore proof beyond

reasonable doubt should not be stretched beyond reasonable limit. He cited the cases of Fabian Nwaturuocha v The State (2011) 6 NWLR (PT1242) 170 at 175; Alabi v State (1993) NWLR (PT 307) 511; Dele Gabriel V The State (2010) 6 NWLR (PT 1190) 280 at 295, Alor v State (1997) 4 NWLR (PT 501) 511.

The principle of law was reiterated by the A.G that, the onus remains permanently on the prosecution to prove or establish beyond reasonable doubt, and the onus or burden of proof never changes or shifts. But once the prosecution proves the commission of a crime beyond reasonable doubt, the burden or onus is instantly discharged and at that stage the proving beyond reasonable doubt of that evidential burden is now shifted on to the accused. Therefore, although the onus of proof does not shift in criminal cases, it however behooves the defence to establish its own assertion. There is something like the shifting of evidential burden in criminal cases.

It was noted by the A.G that, there are occasions when evidential burden could shift on to an accused person. In a criminal case if the defence asserts an impossibility, or to bring into existence what does not

exist. He cited the cases of ABDULLAHI V STATE (2008) 17 NWLR (PT1115) page 203 AT 205 , para 2; ATTAH V STATE (2000) Vol.30 WRN page 1 at14 para 14.

The prosecution’s case at the trial Court was that, the Appellant and co accused, DW3, and two others at large, on 30th July, 2014, committed armed robbery, by robbing PW1, and other two (2) persons of their phones and money. To prove its case, the prosecution called six witnesses i.e PW1, PW2, PW3, PW4, PW5 and PW6. Prosecution tendered exhibits A, B, D-D1, E, F, G, H, I, J-J3, K, L, M,.

In his further submissions, the A.G contended that, the evidence of PW1, Alhaji Mudashiru Bello, is the vivid evidence of an eye witness, who gave details of how the Appellant and his other three co- accused persons robbed him while armed with dangerous weapons like cutlass, dagger, knife. PW1 recognized and identified the Appellant as one of the armed robbers that operated on 30th July, 2014, in his residence at Odundun Street Okeisha, Ado-Ekiti. He confirmed that the Appellant was arrested at the scene of crime. His evidence is on pages 31-32 of the record of appeal. Counsel submitted that PW1’s

evidence established that there was robbery on the said date, that it was an armed robbery, and that the Appellant in this instance was among the four robbers. He cited the case of Okpulor v State (1990) 7 NWLR (part164) 581 at 584.

The A. G referred to the evidence of both PW2, and PW3, who were on patrol. They also gave detailed vivid evidence as eye witnesses, of how they got to the scene of crime and met the Appellant with his three co-armed robbers robbing PW1, at Odundun Street. The armed robbers opened fire at them. PW2 fired back and hit the Appellant. They arrested the Appellant on the scene, and handed him over to Area Commander at Okesha. Counsel contended that, their evidence in law is direct evidence and it established the three cardinal ingredients of armed robbery known to law. They fixed the Appellant at the scene, and he was arrested while committing the crime. The evidence of PW2, and PW3 on the whole remained unchallenged and un-contradicted. Their evidence is on pages 35, 36, and 37 of the record of appeal. He cited the case of Emeka v The State (2001) 14 NWLR (PT734) 666; Samuel Bozin v The State (1985) 2 NWLR (PT 8) 645 at 647.

The evidence of PW4, the police officer who investigated the case of armed robbery against the Appellant, and Sunday Adegboye before the trial Court at the State CID. He confirmed that both Appellant and Sunday Adegboye confessed to the crime, and that the Appellant Raji Babatunde voluntarily made exhibit A, Sunday Adegboye also made exhibit B voluntarily. He confirmed that PW1 was robbed at his residence on the said date, and that the Appellant confessed to him vide exhibit A, that he was one of the four armed robbers. Counsel contended that exhibit A, in law is a confessional statement. It also established the three cardinal ingredients of armed robbery as known to law against the Appellant. The later retraction of the said exhibit at the trial Court notwithstanding. He cited the cases of Emeka v State (supra), Samuel Bozin v State (supra). The evidence of PW4, is on pages 40, 41, 47 and 48 of the record of appeal.

On the evidence of PW5, counsel referred to pages 53, 54, and 55., wherein the witness a police officer, gave evidence of what he did in respect of this armed robbery case. He said the appellant made Exhibit D voluntarily. Exhibit

D was direct, positive and voluntary. That on the order of his superior, he transferred same to the State CID, the Appellant with injury he sustained at the scene, exhibit D, with the Statement of PW1, and other exhibits recovered from the Appellant like one bottle of trophy Beer, one dagger knife, and one (1) cutlass. The three (3) other cutlasses were recovered from the scene of crime with fez cap, bush radio and others.

The evidence of the sixth prosecution witness PW6, a police officer at the State CID, was summarized by the counsel. He tendered the exhibits the IPO kept with him. The ten exhibits were tendered and admitted as exhibits E, F, G, H, I, J-J3, K, L, and M. It was submitted by counsel that these exhibits constitute documentary evidence and PW2, PW3, PW4, PW5 and PW6 confirmed them.

The counsel referred to the evidence of the six witnesses in highlighting the fact that the prosecution presented vivid, cogent and credible evidence in establishing the guilt of the Appellant beyond reasonable doubt, therefore discharged the onus and burden on the prosecution. That the evidential onus has now shifted to the Appellant to contend with. He

cited the cases of Abadom v State (1997) 1 NWLR (PT 479) 1 ratio 5; Bakare v State (supra).

On the position of the law that the prosecution must prove the three cardinal ingredients of armed robbery. Counsel cited the case of Eke v State (2011) Vol.10 WRN PG 6 PARAGRAPH 5.

He surmised that the evidence of PW1, PW2, and PW3, PW4, PW5 all confirm and prove that there was robbery or series of robbery.

On the non production of the stolen phones, the A. G contended that the evidence adduced before the trial Court was very clear on the fact that two or three of the robbers ran away with the items they stole. It was further submitted by the A. G that both PW2, and PW3, gave evidence that they actually recovered exhibits E, F, J, and l, from the Appellant, and handed them over to PW5, who in turn handed them over to PW4, and PW6 brought them to Court to tender for the prosecution. PW2 and PW3, also said they recovered Exhibits G, H, J3,S, K, and M from the scene of crime, and handed them over to PW4, who eventually handed them over to PW6 and the prosecution tendered them through PW6 at the trial Court.

The A. G debunked the argument of

Appellant’s counsel that there are contradictions in Exhibits A, and D. He referred to the evidence adduced by the prosecution before the trial Court, that there are no contradictions in the two exhibits. Both are the confessional statements of the appellant at the two different levels of investigations. That both PW4 and PW5, were cross-examined by Appellant’s counsel. He cited the case of Attah v State (supra).

The contention of the Appellant that there was no robbery was debunked by the A. G. premised on the evidence of PW1, PW2, and PW3 before the trial Court .

The testimonies of DW1, DW2, and DW3, were described as afterthoughts and not the correct position by the A. G. He reiterated the fact that PW1, PW2, PW3 fixed and arrested the Appellant at the scene of robbery. He stated the law that once there is a convincing and uncontroverted evidence of fixing as in this case, the plea of alibi dissolves completely.

On the assertion of Appellant that none of the witnesses called by the prosecution were present when the Appellant was arrested, counsel submitted that this is not the correct position. PW2 and PW3, were among the five

policemen that arrested Appellant, and handed him over to the Area Commander at Okesha, Ado- Ekiti.

Counsel disagreed with Appellant on the point that the trial Court convicted the Appellant relying heavily on the confessional statements exhibits A, and D. He surmised that the forms of evidence before the trial Court were direct, circumstantial and documentary. That exhibits A, and D are documentary, whilst the evidence of PW1, PW2, and PW3 were before the trial Court, they are clear, cogent, and credible.

This Court was urged to regard the fact that the trial Court relied on exhibits A, and D, to be right in view of the damning corroborative evidence before the trial Court. PW1, PW2, and PW3’s evidence were confirmed as eye witness account by learned counsel, contrary to the argument of Appellant. On corroboration of exhibits A, and D, counsel posited that exhibit A and D, were sufficiently corroborated by evidence of PW1, PW2, PW3 on pages 31, 32, 35, 36, and 37 of the record of appeal. He cited the case of R V Stay (1913) 8 C.A.R 233. He urged this Court to hold that exhibits A and D were sufficiently corroborated. Whilst exhibit C, is the

statement of PW1 which is direct evidence from PW1, and it is not hearsay evidence. On issue 1, the A. G urged this Court to hold that the prosecution has proved and led credible, cogent and reliable evidence before the trial Court to warrant and justify the conviction and sentence of the Appellant for armed robbery.

Resolution of issue
It is axiomatic in our jurisprudence that the burden of proving that any person has committed a crime or a wrongful act rests on the person who asserts it and this is, more often than not, the prosecution. Where the commission of crime by a party is in issue in any proceedings be it civil or criminal, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts. Therefore, if in a criminal trial on the whole of the evidence before it, the Court is left in a state of doubt, the prosecution would have failed to discharge the burden of proof which the law lays upon it, and the defendant will be entitled to an acquittal – Sabi v. State (2011) 14 NWLR (Pt. 1268) 421, Iwunze v. Federal Republic of Nigeria

(2013) 1 NWLR (Pt. 1324) 119, Njoku v. State (2013) 2 NWLR (Pt. 1339) 548, Osuagwu v. State (2013) 5 NWLR (Pt. 1347) 360, Ajayi v. State (2013) 9 NWLR (Pt. 1360) 589.
It must however be stated that proof beyond reasonable doubt is “not proof to the hilt” and is thus not synonymous with proof beyond all iota of doubt. This is because absolute certainty is impossible in any human endeavor, including the administration of justice. Proof beyond reasonable doubt thus simply means, establishing the guilt of the defendant, with compelling and conclusive evidence to a degree of compulsion, which is consistent with a high degree of probability. Once the prosecution has been able to prove that an offence has been committed, and that no person other than the accused committed the offence, the prosecution is said to have established its case beyond reasonable doubt – Adeleke v. State (2013) 16 NWLR (Pt. 1381) 556 and Babarinde v. State (2014) 3 NWLR (Pt 1395) 568. This point was expressed by Denning J (as he then was) in Miller v. Minister of Pensions (1947) 2 All ER 372 at 373 thus:
“Proof beyond reasonable doubt does not mean proof beyond the

shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is as strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable’ the case is proved beyond reasonable doubt but nothing short will suffice.”

The charge against the Appellant before the lower Court was three counts of armed robbery. It is settled law that the essential ingredients that the prosecution must prove in order to secure a conviction for armed robbery are (i) that there was indeed a robbery or series of robbery; (ii) that the robbers were armed with dangerous weapons; and (iii) that the accused defendant was the robber or one of the robbers – Osetola v. State (2012) 17 NWLR (Pt. 1329) 251, Osuagwu v. State supra, Abiodun v. State (2013) 9 NWLR (Pt. 1358) 138, Ajayi v. State supra. The prosecution must meet the above ingredients through credible evidence. The three ingredients must co-exist and where one of them is either absent or tainted with any doubt, then the charge is said not to be

proved – Sabi v. State supra.

It was not in contest in this appeal that a robbery indeed took place at No. 15, Odundun Street, Okesa Area, Ado-Ekiti, in Ado Judicial Division in the night of the 30th day of July, 2014 at about 2:00am and during which one Alhaji Mudashiru Bello was robbed of two Nokia phones, and one Techno phone, and also at No 5C, Dallimore Street, Ado-Ekiti in Ado Judicial Division, robbed one Oladele Femi of one bottle of Star larger beer, six bottles of Trophy and one packet of Rothmans’s cigarettes. The Appellant and his co -accused at Okesha Area, Ado-Ekiti in Ado Judicial

Division robbed one Bello Akeem of his Techno handset and cash sum of Ten Thousand Naira (N10,000). This was the robbery for which the Appellant was charged. The first ingredient of the three count charge against the Appellant was thus accepted as proved and established.

In proving the second and third ingredients of the offence of armed robbery, it is obvious from the record of appeal, that the Respondent relied on the confessional statement of the Appellant in establishing the ingredients beyond reasonable doubt and that the lower Court accepted the confessional statement as being direct, positive and unequivocal and it found the Appellant guilty on the basis of the confessional statement. Now, the case of the Respondent against the Appellant, and his co-accused person in the lower Court, as contained and related in the testimonies of the six prosecution witnesses, was that on the night of the 30th day of July, 2014, the Appellant in the company of three other persons, while armed with sticks, iron rods, machetes and other dangerous weapons, went on a robbery operation to the house of one Alhaji Mudashiru Bello at No 15 Odundun Street, Okesa Area, Ado.

Ekiti, as well as to the house of Oladele Femi at No 5C, Dallimore Street, Ado-Ekiti, and the house of Bello Akeem at Okesha Area Ado- Ekiti .

The first prosecution witness was Alhaji Mudashiru Bello (PW1) and he testified that on the night of the 30th of July, 2014, he was in his father’s house at Ado- Ekiti sick, when he saw four men who were using a big stone to break the door of his father’s apartment next to their house. They later came into his room with dangerous weapons like cutlasses and knife. That the two defendants in this case were amongst the four robbers. They took his phone and money, they also took the phone of his wife all totaling about N30,000 in value. He went further to state that the 1st Defendant was the one who was shot by the police, with the stolen properties in his hand as he was about to escape.

The 2nd Defendant was among the four robbers that came to his house to rob him. The four robbers were not wearing masks and it was only the 1st Defendant, that was arrested that night while the others escaped. There was light in his room when the robbers came there.

When cross-examined, he stated that he

has known the Defendants as indigenes of Ado-Ekiti, before the robbery incident.

That there were other people in the house where he was that night and also in the compound including a police man who was a tenant therein. It was the wife of the Police man that sent a text message to him when the operation was on as he was on patrol. Police team came to the scene, and they arrested the 1st Defendant at the scene that night.

The robbers locked this witness up in his room after robbery. As at when they were coming to his room, they met at the passage and took him back to his room, and asked for his money. They inflicted injuries on his brother. He knew the 2nd Defendant very well and he was among the robbers that came to his house that night. The robbers were not masked.

The 2nd Prosecution Witness CP1, Duduyegbe, knew only 1st Defendant. On 30th July, 2014 he was on duty when they received a phone call at about 2:00am, that there was a robbery going on at Odundun Street. The information came to them from the central room of the Police Force with an instruction to go there. Their team which was led by Inspector Kolapo Joseph, went to the

scene where they met four men robbing the house, and the people of the house of Alhaji Bello Balogun. As soon as the robbers sighted the police vehicle, one of the robbers started shouting mopol, mopol, and they started jumping the fence. The robbers shot, fired at them and then, the police replied with gun fire, which hit one of the robbers called Raji Babatunde, the 1st Defendant, who was there and then arrested, and taken to the Police Clinic for treatment. The other robbers ran away with their guns.

After first aid was administered on the first defendant, he was handed over to the Ado Central Police Station with a bottle of beer, one butcher knife, which were recovered from him. Four cutlasses were recovered from the scene.

When cross-examined, he stated that he was knowing the 1st Defendant for the first time on the day of the incident. The house was fenced with a gate, the weather was cool and silent while the police siren was on. The police also recovered a torch light from the 1st Defendant.

The PW2, fired the first Defendant after he jumped the fence. He reiterated the fact that he did not shoot a wrong person and that the 1st

Defendant was not mistaken for a robber, that he was not coming from somewhere else as the time was about 2:00am in the morning, and a small world receiver radio the 1st defendant took from the robbed house was recovered from him with the other items he earlier mentioned. The fact that the 1st defendant participated in the robbery was confirmed by one of the victims, who stated that he was the one who put a torch light on his face when he was robbing him.

The 3rd Prosecution Witness, Inspector Kolapo Joseph knew only the 1st Defendant. On 30th, July, 2014 he was on stop and check night duty when one of his team members PW2 received a message on his phone that there was a robbery at Odundun Street Okesha Ado- Ekiti. The Control room gave them order to go to the scene. They met the robbers operating at the scene. One of the robbers started shouting mopol, mopol and there was an exchange of gun fire between the robbers and police team. PW2, aimed at the 1st defendant who fell down and he was carried to the Police Clinic for first aid treatment.

On the instruction of their commandant, the 1st Defendant, was handed over to the Ado-Ekiti Central

Division of the Police. They recovered cutlasses, axes, bottle of beer, knife and a torch light from the scene after they went back there. He saw four robbers that night.

When cross-examined, he stated that he knew the 1st Defendant the day they fired him and arrested him. The Police siren was not on and as trained Police officers, they were to fire back if an enemy fired at them. It was PW2, who shot at the 1st defendant outside the fence after he had jumped out from the fence.
They recovered beer, torch light, cutlasses and knife from him. He was the one that led the police team.

The PW4, Sergeant Julius of the SARS office stated that this case of armed robbery was transferred from Okesha Central Police Division, Ado-Ekiti to the Special Anti Robbery Squad, Ado-Ekiti on 30/3/14 with the 1st Defendant and the case file together with some exhibits. The case was assigned to him for investigation.

On receipt of the case file, he took the 1st Defendant to the Police Hospital Okesha for treatment of the bullet injury he suffered at the scene of the robbery incident, where he was treated and taken to the State CID.

The 1st Defendant volunteered a voluntary statement under caution wherein he confessed to the crime, and stated that he went with the 2nd defendant to commit the crime together with Segun a.k.a Shipego and Deji who are now on the run. The 1st Defendant was taken before DSP Ogunkolade Marcus together with his statement for endorsement.

The 1st Defendant made the statement in Yoruba language which he recorded for him in English language, and interpreted to him in Yoruba language. The statement of the 1st Defendant led to the arrest of the 2nd Defendant on 23/8/14 by a team of Policemen at ljoka Area of Ado- Ekiti.

The 2nd Defendant also made a voluntary statement under caution and confessed to the crime. The said statement was endorsed by SPO in the same manner with that of the 1st defendant. Some of the officers who participated in the investigation of this case as at that time will include 2nd Defendant, SDP Ogundola Marcus, Corporal Kolawole Ojo, Sergeant Akinfolami Festus and two others.

The exhibits that were transferred to the State CID with the 1st Defendant includes cutlasses, broken bottles, jerk knife and a bottle of Trophy Larger beer. The case file

that was transferred with the 1st Defendant to the State CID contained the Statement of the victim, the witness and the statement of the 1st Defendant that was confessional in nature.

PW4, tendered the statements of the 1st and 2nd Defendants and they were admitted as exhibits A and D without objection even as the defence counsel informed the Court that the Defendant did not make the statement.

When cross-examined, he stated that the case file was transferred to him on 30/7/14, while the incident happened on 30/2/14. The 1st Defendant was taken to the hospital that particular date. He did not recover anything from the 1st Defendant personally.

As at the time the case file was transferred to the State CID, the 2nd defendant had not been arrested. PW1 made statement at the State CID which he took on 30/7/14. The statement of PW1, taken by one of the members Akinfolami Festus and it was admitted as exhibit C without objection.

PW1, did not mention the name of the 2nd Defendant in Exhibit C, and could not have mentioned his name therein as he did not know his name before and during the robbery incident. He arrested the 2nd Defendant on

23/8/14 and called on PW1 to come and make additional statement on the identity of the 2nd Defendant, but he did not show up and all efforts made to call the other complainants to come and make statement were fruitless.

PW4 took personal delivery of the exhibits when they were brought to the State CID, and registered them with the exhibit keeper, but without subjecting them to laboratory examination.

The 2nd Defendant made his statement in Yoruba language, which he PW4 interpreted and recorded in English language. Exhibit B has it that it was taken in English language.

PW5, Sergeant Akinola stated that he on 30/7/14 was called upon by the DCO Supo Metufus and he handed over the case file relating to this case to him with the 1st Defendant for investigation. He took the statements of the victims and executed a search warrant on the premises of which the 1st Defendant called his own, by deceit as he did not take him to his own house. He visited the scene where he observed that the door of the victim was broken. He recovered four cutlasses which were said to belonged to the robbers, he recovered a big stone, a jack knife, some broken bottles and a

bottle of trophy beer with its content.

He took the 1st Defendant with his statement to the DCO, who endorsed the statement after confirmation by the 1st Defendant. He tendered the statement of the 1st Defendant, and it was admitted together with the attestation form as Exhibits D and D1 without objection even though the 1st Defendant said he was not the maker. He later transferred the case and 1st Defendant to the State CID with the exhibits.

During cross-examination he stated that he has served in the force for fifteen years, and that the incident happened on 30/7/14. He transferred the 1st Defendant with his statement to the state CID. The Defendant took him to his mother’s place, and thereafter to the scene of crime. He knew that the 1st Defendant sustained injuries as he was shot by the Police that arrested him.

The PW6, Inspector Jimoh Ariyo of the State CID and exhibit keeper tendered the exhibits in this case and they were admitted without objection, exhibits E, F, G,H, I, J-J3,K, L, M.

The record of appeal shows that neither the Appellant nor his Counsel raised any objection to the admissibility of the confessional statement and/or

protested that the Appellant did not make the statements or that the signatures thereon did not belong to the Appellant at the time it was tendered by the fourth prosecution witness. It is a settled principle in criminal litigation that where a confessional statement of an accused defendant is tendered in evidence without any objection or protest from the accused defendant or his Counsel, the confessional statement will be deemed to have been made voluntarily and its contents will be deemed true – Osung v. State (2012) 18 NWLR (Pt. 1332) 256, Ajibade v State (2013) 6 NWLR (Pt. 1349) 25 at 44 E-H, Stephen v State (2013) 8 NWLR (Pt. 1355) 153 at 173 D-H.

Counsel for the Appellant, berated the lower Court for relying on the confessional statement to convict the Appellant on the ground that there was no corroborative evidence in the testimonies of the prosecution witnesses, showing that the contents of the confessional statement was plausible and true. Firstly, it must be pointed out that the record of appeal show that, at no time during the cross-examination of the fourth prosecution witness did the Counsel for the Appellant put the witness to task on

whether or not the Appellant made the confessional statement. The law is that, in such circumstances, the testimony of the witness on the making of the statement by the Appellant, will be believed and any subsequent suggestion otherwise by the accused defendant is to be treated as an afterthought – Iwunze v. Federal Republic of Nigeria (2013) 1 NWLR (Pt. 1334) 119, Chukwu v State (2013) 4 NWLR (Pt. 1343) 1, Egwumi v. State (2013) All FWLR (Pt. 678) 824. This point was succinctly explained by Achike, JSC in Oforlete v. State (2000) 12 NWLR (Pt. 631) 475 at 436 C-E thus:
“where an adversary fails to cross-examine a witness upon a particular matter, the implication is that he accepts the truth of the matter as led in evidence. After all, the noble art of cross-examination constitutes a lethal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party. It is therefore good practice for counsel not only to put across his client’s case through cross-examination, he should, as a matter of the utmost necessity, use the same opportunity to negate the credit of that witness whose evidence is under fire. Plainly, it is

unsatisfactory, if not suicidal bad practice, for counsel to neglect to cross-examine a witness after evidence-in-chief in order to contradict him or impeach his credit while being cross-examined but attempt at doing so only by calling other witness or witnesses thereafter. That is demonstrably wrong and will not even feebly dent that unchallenged evidence by counsel leading evidence through other witnesses to controvert the unchallenged evidence.”

Secondly, and more importantly, the record of appeal show that in his testimony in his defence before the lower Court as the second defence witness, the Appellant made no reference to the confessional statement; he did not deny making the statement, he did not contest its contents or his signature thereon and neither did he contradict the testimony of the fourth prosecution witness on the making of the statement. It is settled law that during trial, an accused defendant who desires to impeach his statement is duty bound to establish that his earlier confessional statement cannot be true by showing any of the following (i) that he did not in fact make any such statement as presented; or (ii) that he was not

correctly recorded; or (iii) that he was unsettled in mind at the time he made the statement; or (iv) that he was induced to make the statement – Hassan v. State (2001) 15 NWLR (Pt. 735) 184, Kazeem v. State (2009) WRN 43 and Osetola v. State (2012) 17 NWLR (Pt. 1329) 251.

The Appellant did not raise and/or establish any of these situations in his evidence before the lower Court. All that the Appellant did in his testimony was to give evidence inconsistent with the contents of the confessional statement. The law is that where an accused defendant does not challenge the making of his confessional statement but merely gives oral evidence which is inconsistent with or contradicts the contents of the statement, the oral evidence should be treated as unreliable and liable to be rejected and the contents of the confessional statement upheld unless a satisfactory explanation of the inconsistency is proffered – Gabriel v. State (1989) 5 NWLR (Pt. 122) 457, Ogoala v. State (1991) 2 NWLR (Pt. 175) 509, Egboghonome v. State (1993) 7 NWLR (Pt. 306) 383, Oladotun v. State (2010) 15 NWLR (Pt. 1217) 490, Federal Republic of Nigeria v. Iweka (2013) 3 NWLR (Pt. 1341) 285,

Osuagwu v. State supra. In the instant case, the Appellant did not offer any explanation for the inconsistency.

There was nothing presented by the Appellant to warrant the need for the lower Court to look for corroborative evidence – Osung v. State supra. In Bassey v. State (2012) 12 NWLR (Pt. 1314) 209, the Supreme Court held that, where an accused person confesses to an offence in his extra-judicial statement, and had no objection to the statement being tendered and admitted in evidence, and did not lead any cogent evidence in his testimony in Court resiling from the contents of the statement, there would be no need to look for evidence outside the confession anymore.
It is trite that a Court is entitled to convict an accused defendant solely on the basis of his direct, positive and unequivocal confession so long as it is satisfied of its truth, even without corroboration – Stephen v. State (1986) 5 NWLR (Pt. 46) 978, Yahaya v. State (1986) 12 SC 282, Oseni v. State (2012) 5 NWLR (Pt. 1293) 351, Oladipupo v. State (2013) 1 NWLR (Pt. 1334) 68, Abdullahi Vs State (2013) 11 NWLR (Pt. 1366) 435. The record of appeal shows that the lower Court made a

finding in the judgment that the confessional statement of the Appellant was direct, positive, unequivocal, free, voluntary and properly made. This finding has not been challenged in this appeal. It is a finding that is unassailable, and ought not to be disturbed.

NWLR (Pt. 1134) 209, Nwokearu v. State (2010) 15 NWLR (Pt. 1215) 1 and Galadima v. State (2012) 18 NWLR (Pt. 1333) 610.

The record of appeal show that the lower Court recognized these tests, and that it subjected the contents of the confessional statement of the Appellant to the tests, and it found adequate corroborative facts in the testimonies of the first and third prosecution witnesses, confirming the truth of the confessional statement (see pages 151 to 154 of the record). This finding of the lower Court was also not challenged in this appeal. It is correct as found by the lower Court, that the testimonies of the first, second and third prosecution witnesses, which were evidence outside the confession of the Appellant, corroborated the contents of the confessional statements in material particulars; the testimony of each of the witnesses corroborated different segments of the continuous story in the confessional statement, and they show the confession to be true. It is obvious from the facts and circumstances of this case that the Appellant had the opportunity of committing the offence and that the sequence of events as narrated in the

confessional statement were possible, and that the facts in the confessional statement were in line with the unchallenged evidence of the first, second and third prosecution witnesses. This Court cannot thus fault the reliance rightly placed on the confessional statement of the Appellant, by the lower Court.

Counsel for the Appellant, made copious submissions on the failure of the Respondent to conduct an identification parade, to ascertain that the Appellant was indeed one of the persons that participated in the armed robbery. It is settled that an identification parade is completely unnecessary, and would amount to a complete waste of time, where an accused defendant has confessed to the commission of the crime, as in the instant case and has been pinned to the scene of crime. Osuagwu v. State (2013) 5 NWLR (Pt. 1347) 360, Fatai Vs State (2013) 10 NWLR (Pt. 1361) 1, Sadiku v. State (2013) 11 NWLR (Pt. 1364) 191. The entire submissions of Counsel on the issue of identification parade were thus not well conceived.

Now, Section 1(2) of the Robbery and Firearms (Special Provisions) Act, Cap R11 Laws of the Federation, 2004 states that armed robbery

occurs where at the time of a robbery, the offender is armed with any firearms, or any offensive weapon, or is in company with any person so armed, or at or immediately before or immediately after the robbery, the said offender wounds or uses any personal violence to any person.
Section 11 of the Act defined firearm to include any cannon, gun, rifle, carbine, machine gun, cap-gun, flint lock gun, revolver, pistol, explosive, or ammunition or other firearm, whether whole or in detached pieces. It went further to say that “offensive weapon” means any article (apart from a firearm) made or adapted for use for causing injury to the person or intended by the person having it for such use by him and it includes an air gun, air pistol, bow and arrow, spear, cutlass, machete, dagger, cudgel, or any piece of wood, metal, glass or stone capable of being used as an offensive weapon. These definitions were reiterated by the Court of Appeal inKayode v. State (2012) 11 NWLR (Pt. 1312) 523.
Counsel for the Appellant criticized the case of the Respondent before the lower Court on the ground that, the weapons used in the said robbery were not tendered in evidence

and that as such there was no proof that the robbery was carried out with offensive weapons. A read through the confessional statement shows that the Appellant admitted that he was in possession of a stick at the time of the robbery while the other accused person was carrying a cutlass, and the first accused person was carrying a knife, and the other co-accused persons were carrying sticks. The first prosecution witness gave unchallenged evidence that the persons who robbed him were armed with dangerous weapons like cutlasses and knife. It is clear that a knife, a cutlass, sticks, and iron rod come within the definition of offensive weapon under the provisions of the Robbery and Firearms (Special Provisions) Act. It is settled law that where there is cogent evidence of the use of a weapon, or weapons in the commission of a crime, and cogent evidence linking the accused person with the use of the said weapon, or weapons in the commission of the said crime, the non-tendering of the weapon at the trial is of no consequence and cannot vitiate a judgment – Garba v. The State (2000) 4 SCNJ 315, Ochiba v. State (2010) LPELR-9002(CA), Kabaka v. State (2010)

LPELR-4303(CA), Salahudeen v. State (2013) LPELR-21851(CA).

It is elementary that in determining whether there are contradictions in the case of a party, the entire evidence led before the Court must be looked at holistically, and this includes the evidence of the other party as the law recognizes that where the evidence led by a party buttresses, and explains the evidence of the other party, that other party can rely on it to support his case – Iroagbara v. Ufomadu (2009) 11 NWLR (Pt. 1153) 587, Nwokidu v. Okanu (2010) 3 NWLR (Pt. 1181) 362, Gbadamosi v. Okege (2011) 3 NWLR (Pt. 1233) 175.

As stated earlier, the Appellant was charged along with one other person, and the second accused person was one Adegboye Sunday and the record of appeal shows that this accused person also made a confessional statement which was tendered and admitted as Exhibit B. In the said statement, the second accused person also made a voluntary statement under caution and confessed to the crime. The said statement was endorsed by SPO, in the same manner with that of the 1st Defendant, in which he stated his own side of the robbery, which took place on the 30/7/2014 . When

this piece of evidence is read along with the testimony of the first prosecution witness, that he knew one of the accused persons, but that he did not know the persons holding weapons in their hands, that entered his house on the night of the robbery, it is evident that there is no contradiction in the testimony of the witness.

This Court finds and holds that the Respondent led cogent evidence to establish the other ingredients of the offense of armed robbery brought against the Appellant.

Counsel for the Appellant addressed the issue of defence of alibi which he said that the Appellant raised in the course of his oral testimony in his defence as the second defence witness. Now, as stated earlier, the failure of the Appellant to challenge the making of his confessional statement, Exhibits A and D, meant that his oral evidence in his testimony in his defence, which is inconsistent with or contradicts the contents of the statement, should be treated as unreliable and rejected.

Additionally, the defence of alibi is a matter that is exclusively within the knowledge of an accused person, and thus the burden is always on the accused person,

to provide at the earliest opportunity the materials or data of where he was at the time of the commission of the crime, so as to enable the Police investigate the facts of the defence, and the earliest opportunity has been held by the Courts to be in the course of interrogation of the accused person by the Police. Where as in this case the Appellant was shot and arrested at the scene of crime, it is a pointer to say that no identification parade was necessary in the circumstance of this case. Where a suspect has been arrested and identified at the spur of the moment, there is no need to organize an identification parade. The evidence on record in the record of appeal is that two Defendants participated in the robbery, and that the Appellant was shot by the Police as he jumped out of PW1’s compound over the fence. The 2nd defendant, was not arrested at the scene he was identified by PW1, in Court as one of the robbers that came to his house, and robbed him and his wife. Where a trial Court is faced with identification evidence, it should be satisfied that the evidence of identification established the guilt of the accused beyond reasonable doubt. See the case

of Ikemson v State (1989) NWLR PT110 page 455.
Further, it is settled law, that where the prosecution leads strong and positive evidence which fixes the accused person at the scene of the crime and which evidence the Court accepts, any plea of alibi raised by the accused person naturally collapses – Olaiya v. State (2010) 3 NWLR (Pt. 1781) 423, Afolalu v. State (2010) 16 NWLR (Pt. 1220) 584 and Sunday v. State (2010) 18 NWLR (Pt. 1224) 223. In the instant case, the clear, cogent and explicit contents of the confessional statement of the Appellant, Exhibits A and D, clearly negate the plea of alibi raised by the Appellant. The plea was unavailing of the Appellant, and the rejection of the defence of alibi by the lower Court cannot thus be faulted.

In conclusion, this Court finds and holds that this appeal lacks merit and it is hereby dismissed. The judgment of the High Court of Ekiti State in SUIT NO:HAD/17C/2017 delivered by Honorable Justice C. I. Akintayo on the 29th of March, 2018 and the sentence passed on the Appellant therein are hereby affirmed.
These shall be the orders of this Court.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.

PAUL OBI ELECHI, J.C.A.: I agree.

Appearances:

Dr. Kayode Ajulo For Appellant(s)

Olawale Fapohunda, Esq., Attorney General Ekiti State, with him, L.B Ojo, Esq., Solicitor General & Permanent Secretary Ekiti State, Julius Ajibare, Esq., Director of Public Prosecutions Ekiti State, Femi Onipede, Esq., Assistant Chief Legal Officer and Ibironke Odetola, Esq. Principal Legal Officer For Respondent(s)

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